Investor state dispute settlement under icsid mechanism from the view of developing countries lessons for vietnam

MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW -*** -MANAGEMENT COMMITTEE OF SPECIAL PROGRAMS LÊ NGỌC BẢO KHUYÊN INVESTOR-STATE DISPUTE SETTLEMENT UNDER ICSID MECHANISM FROM THE VIEW OF DEVELOPING COUNTRIES LESSONS FOR VIETNAM BACHELOR OF LAW - GRADUATION DISSERTATION Faculty: International Law Academic Year: 2012 - 2016 Supervisor: Dr Lê Thị Ánh Nguyệt Author: Lê Ngọc Bảo Khuyên Student ID number: 125 3801 012133 Class: CLC37B HO CHI MINH CITY 2016 ACKNOWLEDGEMENT I want to express my sincere thanks to Dr Le Thi Anh Nguyet from Ho Chi Minh City University of Law for her guidance on the outline of this dissertation Thanks to her I am able to visualize the purpose and the method to research on this interesting topic I want to genuinely thank Ms Trinh Nguyen since the idea of making the dissertation on this ICSID topic coming up during the time working with her as a legal intern I also want to thank Mr Nguyen Trung Nam for providing me the diverse information subject to this topic I am especially grateful for my family, my mother, father, and sister, for their understanding, support and encouragement through years of university Last but not least, I am sincerely thankful and want to show my appreciation for my friends, especially for Thanh Tuan and Ngoc Tuan Their editorial observations as well as their knowledge of computers are really helpful and valuable for the completion of this dissertation TABLE OF CONTENTS ABBREVIATIONS iii LIST OF CASES iv LIST OF CHARTS v INTRODUCTION .1 Importance & Justification of the study Progress in study on the topic 3 Objective & scope of the study .4 Research methodology 5 Structure of the dissertation CHAPTER 1: THE ESTABLISHMENT AND STRUCTURE OF ICSID…… 1.1 Background of the study 1.2 The establishment of ICSID 11 1.3 Main features of ICSID 12 1.4 Jurisdiction of ICSID 14 1.4.1 Consent to arbitration 14 1.4.2 Requirements as to the parties involved 16 1.4.3 Investment disputes 19 1.5 The ICSID Additional Facility 20 1.6 Enforcement of ICSID Awards 21 CHAPTER 2: ICSID FROM THE VIEW OF DEVELOPING COUNTRIE 24 2.1 Criticism on ICSID mechanism 24 2.2 ICSID from substantive point of view 26 2.2.1 Definition of investment .26 2.2.2 Expropriation: direct and indirect expropriation 28 2.2.3 Any consideration of main features of investor-state disputes from ICSID? 2.3 ICSID from procedural point of view 35 i 2.3.1 The connection with the World Bank 35 2.3.2 Independent and Impartiality of the arbitrators 37 2.3.3 The inconsistency of using case law 43 CHAPTER 3: LESSONS FOR VIETNAM 46 3.1 Practical settlement of investment disputes in Vietnam 46 3.1.1 Investment disputes in Vietnam in current period 46 3.1.2 Mechanism for settlement of investment dispute in Vietnam 46 3.1.3 Increasing risk of being claimed by foreign investors 48 3.2 Lessons for Vietnam 50 3.2.1 Review definitions and regulations carefully when negotiating and drafting investment treaties 51 3.2.2 Limit the investor‟s access to arbitration 54 3.2.3 Actively participate in the arbitration proceedings early 55 3.2.4 Enhance the capacity of domestic institutions, especially judicial institutions 56 CONCLUSION 57 ANNEX 59 BIBLIOGRAPHY 62 ii ABBREVIATIONS No 10 11 Abbreviations AF AF Rules ASEAN BIT BTA ECT EU FDI GDP ICC ICSID 12 The ICSID Convention 13 14 15 16 17 18 19 20 21 22 IFC IIA ISDS NAFTA PCA SCC The New York Convention The U.K The U.S The UN‟s Resolution 23 24 TRIMS UNCITRAL 25 UNCTAD 26 VCCI Additional Facility ICSID Additional Facility Arbitration Rules Association of Southeast Asian Nations Bilateral Investment Treaty Bilateral Trade Agreement Energy Charter Treaty European Union Foreign Direct Investment gross domestic product International Chamber of Commerce International Centre for Settlement of Investment Disputes; (or refers to) the Centre The 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States International Finance Corporation International Investment Agreements Investor-state Dispute Settlement North American Free Trade Agreement Permanent Court of Arbitration Stockholm Chamber of Commerce The 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards The United Kingdom The United States of America The 1962 General Assembly Resolution 1803 on Permanent Sovereignty over Natural Resources of the United Nations Trade-Related Investment Measures United Nations Commission on International Trade Law United Nations Conference on Trade and Development Vietnam‟s Chamber of Commerce and Industry iii LIST OF CASES Amco Asia Corporation and others v Republic of Indonesia, ICSID Case No.ARB/81/1; Ceskoslovenska Obchodni Banka, A.S v The Slovak Republic, ICSID Case No ARB/97/4; SGS Société Générale de Surveillance S.A v Islamic Republic of Pakistan, ICSID Case No.ARB/01/13; SGS Société Générale de Surveillance S.A v Republic of the Philippines, ICSID Case No.ARB/02/6; Metalclad Corporation v The United Mexican States, ICSID Case No ARB(AF)/97/1; Santa Elena v Costa Rica Compía Del Desarrollo De Santa Elena, S.A v The Republic Of Costa Rica, Case No.Arb/96/1; Tecnicas Medioambientales Tecmed S.A V The United Mexican States Case No Arb (Af)/00/2; Generation Ukraine, Inc v Ukraine, ICSID Case No Arb/00/9; CMS Gas Transmission Company v Argentine Republic, ICSID Case No.ARB/01/8; 10 Trinh Vinh Binh (Netherlands) v Vietnamese government (Vietnam), UNCITRAL; 11 South Fork (the U.S) v People‟s Committee of Binh Thuan Province; 12 Saipem S.p.A v The People's Republic of Bangladesh, ICSID Case No.ARB/05/07; 13 Marvin Roy Feldmen Karpa v United Mexican States, ICSID Case No.ARB (AF)/99/1) iv LIST OF CHARTS No Chart Name Page Chart Foreign Direct Investment in Vietnam (2012 – 2014) Chart Known ISDS cases, annual and cumulative (1987- 2014) Chart Most frequent Respondent States (total as of end of 2014) 10 Chart Most frequent home States of investors (total as of end of 10 2014) Chart Arbitrators, Conciliators, and ad hoc Committee Members 38 appointed in cases registered under ICSID Convention and Additional Facility Rules – Distribution of Appointments by Geographic Region (as of June 30, 2015) Chart Country Comparison for the Protection of Investors (2016) 49 Chart Known investment treaty claims, by Respondents 59 Chart Types of cases registered under ICSID Convention and 60 Additional Facility Rules (as of June 30, 2015) Chart Basis of Consent invoked to establish ICSID Jurisdiction in 61 Cases registered under the ICSID Convention and Additional Facility Rules (as of June 30, 2015) v INVESTOR-STATE DISPUTE SETTLEMENT UNDER ICSID MECHANISM FROM THE VIEW OF DEVELOPING COUNTRIES LESSONS FOR VIETNAM INTRODUCTION Importance & justification of the study FDI inflows to Vietnam have increased significantly since the country authorised foreign investments back in 1988 According to the World Bank, business climate in Vietnam improved in 2015, with the country gaining three places in the 2016 Doing Business report (90th out of 189) FDI flows are expected to continue to grow, confirming the country's position as the third most attractive country in terms of FDI in Asia, just behind China and India1 Chart Foreign Direct Investment in Vietnam (2012 – 2014) Foreign Direct Investment 2012 2013 2014 FDI Inward Flow (million USD) 8,368 8,900 9,200 FDI Stock (million USD) 72,891 81,791 90,991 Number of Greenfield Investments*** 174 133 251 FDI Inwards (in % of GFCF****) 22.2 22.1 21.8 FDI Stock (in % of GDP) 46.9 48.0 48.9 Source: UNCTAD - 20162 ―Vietnam: Foreign Investment‖, Santander Trade Portal, Available online at: Https://En.Portal.Santandertrade.Com/Establish-Overseas/Vietnam/Investing [Accessed on July 10 2016] Note: * The UNCTAD Inward FDI Performance Index is Based on a Ratio of the Country's Share in Global FDI Inflows and its Share in Global GDP ** The UNCTAD Inward FDI Potential Index is Based on 12 Economic and Structural Variables Such as GDP, Foreign Trade, FDI, Infrastructures, Energy Use, R&D, Education, Country Risk *** Green Field Investments Are a Form of Foreign Direct Investment Where a Parent Company Starts a New Venture in a Foreign Country By Constructing New Operational Facilities From the Ground Up **** Gross Fixed Capital Formation (GFCF) Measures the Value of Additions to Fixed Assets Purchased By Business, Government and Households Less Disposals of Fixed Assets Sold Off or Scrapped Just in 2015, Vietnam has attracted large technology, industrial and HR projects and, between January and September 2015, recorded USD 17.15 billion worth of foreign direct investment for a total of 461 projects Such high flows of foreign direct investment goes along with the need of increasing level of protection for foreign investors Being one of the developing countries not yet participate in the ICSID Convention, Vietnam has been under pressure of the international investors community as well as other developed countries to agree to use ICSID mechanism as the way to settling investment disputes in BITs not only to protect the interests of foreign investors in Vietnam, but also to make the investment environment of Vietnam more attractive and appealing On the other hand, developing countries usually are the Respondents under ICSID mechanism and the ones bear the burden of compensation and other measures as held in the awards of ICSID arbitral tribunals Looking over the s of ICSID, 60% of all cases were brought against developing and transition economies in 2014 This leads to a certain doubts and questions on ICSID regime‟s impact on developing countries Thus, is ICSID really a good choice for developing countries? Is there any ways for developing countries to avoid being sued at the ICSID? Is there any ways for developing countries to avoid huge compensation to foreign investors but still remain a member of the ICSID Convention? From Vietnam‟s perspective, is joining the ICSID Convention the only option for Vietnam like other developing countries having not ratifies the Convention? How could Vietnam avoid being sued by foreign investors? To answer these questions, a research on how ICSID mechanism works as well as the application of ICSID mechanism in Investor – State disputes settlement in practice from the view of developing countries have a significant meaning for Ibid, note Vietnam to consider joining the ICSID Convention and prepare for the possibility of being sued by foreign investors under the ICSID mechanism Progress in study on the topic Overseas, there are many studies on international investment disputes, investment disputes settlement mechanism, ICSID mechanism, such as: - Investor-state Disputes arising from Investment Treaties: A Review, UNCTAD Series on International Investment Policies for Development (2005); - International Centre for Settlement of Investment Disputes – Procedural Issues, Course on Dispute Settlement in International Trade, Investment and Intellectual Property, UNCTAD (2003); - Bassant El Attar et al, Expropriation clauses in International Investment Agreements and the appropriate room for host States to enact regulations: a practical guide for States and Investors, The Graduate Institute Geneva – Centre for Trade and Economic Integration (2009), etc These above studies introduce the general view of ICSID, or analyse one or several features of ICSID mechanism These works have emphasized the outstanding points of this mechanism as ensuring the interests of investors are protected when investing in developing countries Solutions to apply such mechanism in some countries are also discussed in these studies, especially in Latin American countries such as Argentina, or Venezuela, as there is a large number of investor-state dispute initiating under the mechanism of ICSID In the publication "Investor-state disputes: prevention and alternatives to arbitration II" hay “UNCTAD Series on issues in international investment agreement: Dispute settlement investor-state”, UNCTAD has pointed out common dispute between the Hence, in the context that Vietnam has not been a member of the ICSID, explicitly and clearly definition of “investment” in bilateral and multilateral investment treaties as well as requirements in detail for the investment to be protected under the laws of contracting parties are really important to limit the scope of applying treaties and jurisdiction of ICSID For examples, in BIT between German and Philippines, it is asserted that the regulations governing the investments shall be in compliance with the laws of Contracting States, or the Inter-governmental Agreement between Malaysia and the Belgo-Luxemburg Economic Union stated that the investment made in to a specific project shall be approved by appropriate competent authorities of the Contracting States134 Thus, to minimize the risk of being claimed by investors through broader or different definition of "investment" from state's initial purpose when signing treaties, Vietnam must learn from other countries' experience in the matter and take precautions of such term when signing any treaties b Regarding the term “Expropriation” Many other ICSID cases involving developing countries have showed the tendency to broaden the concept of “expropriation” including indirect and direct measures or other actions which have the same effect as “expropriation” To minimize the risk of being sued regarding the interpretation of “expropriation”, Vietnam should be careful in defining “expropriation” (direct or indirect) Any expropriation must be on reasonable basis, with quick, timely and suitable compensation Valid and excepted expropriation will normally satisfy the following conditions: - for a public purpose, - non-discrimination, 134 Nguyen Trung Nam, Investor-state dispute settlement under ICSID mechanism in Asia – lessons for Vietnam, June 21 2012, available at: http://www.lexology.com/library/detail.aspx?g=796a478c-b353-442e9dc9-4b21e05b5a95 52 - payment of compensation in a timely, fair and effective, and - in compliance with the law An expropriation which does not satisfy such conditions would be the cause of investor-state disputes135 Under ICSID mechanism, expropriation action is not limited to the expropriation of their lawful property investors Many ICSID cases show the trend of expanding the concept of "expropriation" as including indirect expropriation, or other conducts equivalent to "expropriation" Foreign investors may also claim for expropriation in cases their investment licenses are taken unreasonably Also, expropriation may arise from the courts not to recognize and enforce the judgment of the domestic and foreign arbitration136 with unconvincing basis Such problem must be noted since many arbitration judgments are not recognized and enforced in Vietnam, despite Vietnam's participation in the New York Convention 1958 on recognition and enforcement of arbitral awards Because of such broad interpretation of “expropriation”, Vietnam need to review its BITs and other international commitments to limit the scope of this concept at a reasonable level, as well as to actively review and examine policies, decisions and management measures on foreign investments to avoid measures which might be considered “expropriation” in a broad term Moreover, many BITs usually are based on the model BITs, such as the U.S Model BIT or the UK Model BIT Thus, Vietnam should carefully review all the regulations before signing to make sure that such BITs illustrate exactly the “original will” and reduce the risk of being sued by foreign investors later Last but not least, Vietnam, like many other developing countries, has limited technical capacity carry out drafting process as well as skills and experiences to negotiate with developed countries Thus, developing countries should get consultancy during drafting and negotiating treaties and find technical assistance of legal experts from developed countries before entering into any treaties 135 136 See NAFTA Saipem S.p.A v The People's Republic of Bangladesh, ICSID Case No.ARB/05/07 53 3.2.2 Limit the investor’s access to arbitration In order to limit the investor‟s access to arbitration, Vietnam as the host countries should limit the areas in which the foreign investor can bring the claims to ICSID In some investment agreements, there are provisions established to limit the reach of treaty obligations of the host state or the investor‟ access to arbitration For instance, a ruling in EnCana Corporation v Republic of Ecuador case, a ruling found that the applicability of the Canada-Ecuador treaty in disputes over taxation measures was severely restricted as stated in Article 12 of the treaty Thus, the tribunal held that the government‟s conduct of refusing to refund the value-added taxes (VAT) did not constitute a breach of the Canada-Ecuador treaty, and the Canadian investor was under obligation to pursue its tax grievance in the local courts Another way for Vietnam to limit the investor‟s access to arbitration is to exclude ICSID provision in investment treaties This can be clearly illustrated through the 2004 US – Australia Free Trade Agreement Investor-state dispute resolution is not provided in this treaty as Australian government disapproved such regulations137 The exclusion of the “extreme investor privilege builds the key precedent by allowing domestic courts to have the final jurisdiction in investor-state disputes The government should consider taking the same position as the Australian government if currently engaging in new trade negotiations with the United States, or should request the deals to be renegotiated to leave out the investor-state provisions in case already have US trade agreements However, if this solution is not applicable due to the difference in position when negotiating and drafting treaties between developed and developing countries, Vietnam can apply such solution when negotiating investment agreements with other developing countries 137 http://www.iisd.org/itn/2011/07/12/australias-rejection-of-investor-state-dispute-settlement-four-potentialcontributing-factors/ 54 On the other hand, if excluding investor-state dispute resolution in investment agreements is really not possible in the context of Vietnam, government must find the way to at least resisting the use ICSID mechanism as the way to resolve investor-state disputes Beside ICSID mechanism, investor-state disputes can actually be settled either at commercial arbitration forum like ICC or SCC, or by ad hoc rules of procedures, such as UNCITRAL In the end, developing countries are not forced to conclude BITs which include dispute settlement provisions that must be refer to ICSID; rather, they make the choice to so and it might seem a little condescending to think they conclude treaties disadvantaging them Hence, it must be noted that ICSID is not the only choice for developing countries for settling disputes with the foreign investors, and limiting the investor‟s access to arbitration is necessary for developing countries like Vietnam to minimize the risk of being sued by foreign investors 3.2.3 Actively participate in the arbitration proceedings early From the practice of settlement disputes under ICSID in developing countries, it can be seen that some bordering countries such as Philippines or Malaysia, have begun to protect their interests as Respondents more and more actively They gain early control over the cases in the very first phase, not merely defend but proactively submit counterclaim, or request the arbitral tribunal to provide legal grounds for their conclusions, and request annulment of awards in cases of defaults stipulated in Article 52 of the Convention, etc Together with the tendency in increasing fairness and considering host states‟ interests more in settlement by ICSID arbitration, the proactive participation of host states in arbitration proceedings has helped them to gain advantages This can be seen through the increasing number of awards in favour of states, especially developing states Thus, Vietnam should be more actively review the procedures, proceeding process as well as previous cases at ICSID and search for information and profiles of ICSID arbitrators and law firms that would be 55 appropriate to its needs in terms of expertise, fee and cost in advance as to react quickly and protect its legitimate interests when Vietnam have to face a claim at ICSID 3.2.4 Enhance the capacity of domestic institutions, especially judicial institutions On all counts, developing and improving local capacity for not only legislative, administrative but also judicial institutions is essential If transparent, reliable and objective local domestic dispute settlement mechanism is feasible and reachable, the need for international dispute settlement might be less necessary Enhancing the capacity of local domestic dispute settlement mechanism can reduce the overall costs of dispute settlement as such disputes can be resolved by local institutions Moreover, this can also be the solution for balancing national policy space and investment protection Additionally, the recognition and enforcement of ICSID arbitral awards must be noticed if Vietnam decides to join ICSID Convention As being a member of New York Convention and also pursuant to the Vietnamese Civil Procedures Code 2015, foreign arbitral awards must be recognized and enforced by competent courts to be implemented Besides, when a disputing party requests annulment of an arbitral award, the court also has to join in However, if the courts abuse their power supervising arbitral proceedings to annul those awards without legitimate grounds, this action could result in the same legal consequence as Saipem v Bangladesh as the ICSID Tribunal considered that the decision of Bangladesh‟ courts on ICC arbitral award would be the sign of abuse This case generated from a contract between two companies, the dispute should have been settled by commercial arbitration according to agreement of the two parties However, once national courts get involved in the proceedings, depending on specific cases, international obligations of host states under their BITS could be reviewed by a judicial body such as ICSID 56 CONCLUSION The current investor-state dispute settlement at ICSID is strongly doubted to grant excessive powers to foreign investors Some critics indicate that multinational corporations can use international investment agreements provisions, especially those from BITs, as the guarantees against risks that such corporations would otherwise have assumed themselves as part of the normal process of establishing and running business The terms of the treaty interpreted by ICSID arbitral tribunal give investors the essentially a property right in those regulations that impact on their profitability remaining as they are If such bet turns out to be wrong, they could still be entitled to earn those profits anyway In a large number of ICSID cases, powerful corporations, especially multinational firms, have used these regulations to excavate the democratic processes, often in developing states, thus make an adverse impact on these venerable communities and environment Furthermore, the connection with the World Bank, the independent, impartiality of the arbitrators, as well as the inconsistency of using case law casts doubt on the independence and autonomy of ICSID arbitration Thus, this must be carefully noted and studied by developing countries, especially when they normally are the Respondents under such regime and bear the burden of compensation and other measures as held in the awards of ICSID arbitral tribunals Based on the studying of ICSID mechanism from both objective view under ICSID Convention and from the perspective of developing countries, there are some conclusions and lessons that need to evaluate and apply in the context of Vietnam for better preparations in the rise of investor-state disputes recently As being one among countries who have not yet ratified the ICSID Convention, should study carefully the ICSID mechanism before deciding to become a member of such Convention, as well as think over whether the government should always sign BITs in order to attract foreign investors If there is clear and obvious benefit from signing such deals, Vietnam should consider the risks before accepting to refer to 57 ICSID for dispute settlement In case the counter parties insist on having ICSID as dispute settlement mechanism, Vietnam should carefully negotiate and draft the treaty in the way that all the key issues, such as definition of investment, expropriation, are well defined and determined 58 ANNEX Chart Known investment treaty claims, by Respondents Source: UNCTAD – 2015138 138 ―Investor-state dispute settlement: Review of developments in 2014‖, IIA Monitor No.2 (May 2015), UNCTAD, United Nations, New York and Geneva (2015) 59 Chart Types of cases registered under ICSID Convention and Additional Facility Rules (as of June 30, 2015) 60 Chart Basis of Consent invoked to establish ICSID Jurisdiction in Cases registered under the ICSID Convention and Additional Facility Rules (as of June 30, 2015) 61 BIBLIOGRAPHY  LEGAL SOURCE ICSID Convention, Regulations and Rules (4/2006) U.S 2004 Model BIT – Treaty between The Government of The United States of America and The Government of [Country] concerning the encouragement and reciprocal protection of investment North American Free Trade Agreement Energy Charter Treaty The U.S Model BIT The U.K Model BIT The New York Convention Switzerland – Pakistan BIT Switzerland – Philippines BIT 10 The U.S – Pakistan BIT 11 German – Philippines BIT 12 The Inter-governmental Agreement between Malaysia and the BelgoLuxemburg Economic Union 13 The 1962 General Assembly Resolution 1803 on Permanent Sovereignty over Natural Resources of the United Nations 14 Vienna Convention on the Law of Treaties 15 The U.S – Vietnam BTA 16 The U.S – 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developing/emerging countries provide protection for themselves under Bilateral Investment Treaties (BITs), CEPMLP Annual Review Volume 16 (2013) EP Legal - Nguyen Trung Nam, Investor-state dispute settlement under ICSID mechanism in Asia – lessons for Vietnam, Lexology Library (2012) Florence Shu-Acquaye - The Protection of Foreign Direct Investments in Developing and Emerging Markets through the Instrumentality of Arbitration: Fair Game, Fla A&M U.L Rev (2013) Hoàng Thị Quỳnh Chi - Quy tắc trọng tài Trung tâm giải tranh chấp đầu tư quốc tế (ICSID), Tạp chí Kiểm sát số 2/2005 ISDS and sovereignty, The use of investor-state dispute settlement mechanism in trade agreements and their impact on national sovereignty, New Zealand Institute of Economic Research (9/2015) Kevin P Gallagher & Elen Shrestha - Investment Treaty Arbitration and Developing Countries: A Re-Appraisal, Global Development and Environment Institute – Tufts University (5/2011) 10 L Mistelis - Regulation and 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www.iisd.org/imvestment/itn www.investmentlaw.info www.kluwerarbitration.com www.uncctad.org http://cuong.name.vn/2013/08/giai-quyet-tranh-chap-nha-nuoc-nha-dautu-khi-gia-nhap-tpp/ 10 http://fia.mpi.gov.vn/tinbai/4310/Viet-Nam-thu-hut-24-1-ty-USD-vondau-tu-truc-tiep-nuoc-ngoai-nam-2015 66 ... order to draw the general view of ICSID mechanism Chapter 2: ICSID from the view of developing countries In order to see and understand ICSID mechanism from the view of developing countries, who... to the country.78 b The nature of investor- state dispute vs the nature of international arbitration mechanism (i) The nature of investor- state dispute ? ?The uniqueness of the investor state disputes... INVESTOR- STATE DISPUTE SETTLEMENT UNDER ICSID MECHANISM FROM THE VIEW OF DEVELOPING COUNTRIES LESSONS FOR VIETNAM INTRODUCTION Importance & justification of the study FDI inflows to Vietnam have